¶1
A dispute amongst beneficiaries of a trust has resulted in
two lawsuits, the second of which comes before us on appeal.
Kara Cattani, as the current successor trustee of the Oates
Family Trust (the Trust), appeals the district court's
dismissal of some of the Trust's claims and the
court's grant of summary judgment in favor of defendants
Lyle Drake, Durham Jones & Pinegar PC, Daniel Maynard,
and Maynard Cronin Erickson Curran & Sparks PLC. We
affirm as to Maynard and Maynard Cronin Erickson Curran &
Sparks, but we reverse in part on claims against Drake and
Durham Jones & Pinegar and remand.

BACKGROUND

¶2
In 1971, Ernest and Florence Oates created the Trust to help
ensure they were properly cared for during their
lifetimes.[1]Upon the death of either settlor, the Trust
was to become irrevocable. Ernest[2] died in 1996. The Oateses
named their four children-Ernest Donald Oates (Oates),
Caroline Woolley, Irene Cattani, and Diane Nolen-remainder
beneficiaries of the Trust. Oates and Woolley died in a car
accident, and Irene Cattani later suffered an unrelated
injury that left her disabled and unable to manage her
affairs. Irene Cattani has five children who are also
involved in this case: Kara, Kent, Keith, Kathleen, and Kyle
(the Cattani children). Nolen, the only remaining child
capable of doing so, served as co-trustee with Florence
following Ernest's, Oates's, and Woolley's
deaths.[3] Nolen became the sole trustee in 2005 when
Florence died.

¶3
Ernest owned a ten-percent interest in a Colorado limited
partnership prior to his death. The Cattani children contend
that Ernest had informed them that the partnership interest
would become Trust property upon his death. But in 1999,
after Ernest's death, Florence signed a document
purporting to transfer the partnership interest to Nolen as a
joint tenant with Florence. When the Cattani children learned
of the transfer after Florence's death, they were
concerned. In 2006, Kara requested an explanation of the
transfer from Nolen; Kent wrote to Lyle Drake, an attorney
representing Nolen as trustee, requesting copies of all trust
documents.

¶4
Drake had been retained by Florence in 2001 to assist with
trust and estate matters. At that time, Florence requested
that Drake prepare a document that would "transfer the
Partnership Interest to Florence and Nolen as joint tenants,
" "apparently forgetting about the 1999
Assignment." Drake was convinced that Florence had not
been unduly influenced in her decision to make the transfer
and prepared the document. Florence executed the assignment,
although, as Drake explained, ultimately it "was
inoperative and redundant due to Florence's prior
execution of the 1999 Assignment" to Nolen as joint
tenants.

¶5
Following Kara and Kent's requests for information in
2006, Drake advised Nolen that she had a duty to provide a
trust accounting as of the date of Florence's death, but
not for "the period prior to Florence's death."
Drake then sent a letter to all the beneficiaries of the
Trust and Florence's estate-including Nolen and the
Cattani children-taking the position that any "request
of past accountings is silly."

¶6
During this same time, Nolen retained an attorney, Daniel
Maynard, to represent her personally. Maynard's initial
focus was on the issue of ownership of the partnership
interest; he did not advise Nolen regarding her duties as
trustee of the Trust. Because of "stress she was
experiencing" in her role as trustee, Maynard advised
her to resign, but Nolen declined this advice. Nolen used the
Trust to pay for her personal legal fees.

¶7
In 2006, Irene and the Cattani children sued Nolen and Drake
(the 2006 case).[4] They sought to have Nolen removed as
trustee, to obtain an accounting, and to have the partnership
interest transferred to the Trust. They also asserted claims
against Drake for legal malpractice, breach of fiduciary
duty, and aiding and abetting Nolen in her breach of
fiduciary duty. The district court ordered the accounting;
replaced Nolen as trustee with a third-party successor
trustee, Stagg Eldercare Services (Stagg); and found that
Nolen "had breached her fiduciary duty to provide an
accounting of the Trust for the period prior to
Florence's death" when Nolen had been co-trustee. It
dismissed the claims against Drake for legal malpractice and
breach of fiduciary duty because he did not have an
attorney-client relationship with the beneficiaries and owed
them no duty.

¶8
The district court also found that because the partnership
interest passed to Florence upon Ernest's death, it never
became a trust asset. The court further granted summary
judgment in favor of Nolen for all claims resting on the
allegedly unlawful transfer of the partnership interest, and
on the one remaining claim against Drake-aiding and abetting
Nolen's breach of her fiduciary duty in refusing to
provide the accounting.

¶9
Stagg, having become successor trustee and substituted as
plaintiff, thereafter amended the complaint against Drake and
Nolen.[5] Stagg and Nolen settled the additional
claims raised against Nolen, and the 2006 case was dismissed
with prejudice in December 2011. No appeal followed the
dismissal. Around that same time, Stagg withdrew as trustee
and Kara became successor trustee.

¶10
After the 2006 case settled, the Cattani children asserted
claims against the Trust seeking reimbursement of their costs
and legal fees in bringing suit against Nolen and Drake. The
Trust settled these claims and agreed to reimburse the
Cattani children with the Trust's funds.

¶11
In January 2010, Stagg, as trustee, sued Drake on behalf of
the Trust (the 2010 case). The 2010 case also included
Maynard as a defendant.[6] Stagg asserted claims for malpractice,
breach of contract, constructive trust, unjust enrichment,
and breach of fiduciary duty. It also alleged that Maynard
was liable for aiding and abetting Nolen's alleged breach
of her fiduciary duties.

¶12
Drake moved to dismiss under rule 12(b)(6) of the Utah Rules
of Civil Procedure, arguing that the 2006 case foreclosed the
claims against him. The district court granted the motion in
part, concluding that the 2006 case precluded any claims
dealing with the partnership interest, but allowed the 2010
case to proceed, provided the "claims going forward be
based solely on other allegations of wrongdoing not related
to the Partnership Interest."

¶13
In November 2012, Kara, as successor trustee, filed an
amended complaint.[7] Drake eventually moved for summary
judgment, as did Maynard. The court granted the motions, and
Kara, on behalf of the Trust, appeals.

ISSUES
AND STANDARD OF REVIEW

¶14
The Trust first argues that the district court erred by
dismissing its claims against Drake regarding the advice he
provided Nolen about the partnership interest. The Trust next
argues that the district court erroneously granted summary
judgment on the remaining claims against Drake. Finally, the
Trust argues that the district court erred in granting
summary judgment on its claims against Maynard. "A
district court's ruling on either a motion to dismiss or
a motion for summary judgment is a legal question which we
review for correctness[.]" Commonwealth Prop.
Advocates, LLC v. Mortgage Elec. Registration System,
Inc., 2011 UT App 232, ¶ 6, 263 P.3d 397.

ANALYSIS

I.
Motion to Dismiss

¶15
The Trust urges us to reverse the district court's
dismissal of claims against Drake that are related to the
partnership interest "and any issues that flow from it,
including [the Trust's] claims against [Drake] regarding
conflicts of interest or breaches of fiduciary duty that are
based upon the transfer of the Partnership Interest to Diane
Nolen and the efforts of Ms. Nolen to retain that Partnership
Interest." The district court's reasoning was that
the court in the 2006 case had already determined Nolen could
not have breached any fiduciary duties by acquiring the
partnership interest because that interest was not a trust
asset. Thus, there was no breach relating to the advice given
by Drake concerning that interest. The district court
particularly decided that it would not retry this issue
because there was "sufficient privity between the
beneficiaries who were plaintiffs in [the 2006 case] and the
Trustee who is Plaintiff in this case that they should be
considered the same for purposes of collateral
estoppel."

¶16
Collateral estoppel bars relitigation of "facts and
issues in [a] second suit that were fully litigated in the
first suit." Searle Bros. v. Searle, 588 P.2d
689, 690 (Utah 1978). To establish that collateral estoppel
applies, a party must meet a four-part test asking whether
(1) the issue decided in the prior adjudication was identical
to the one presented in the action in question, (2) there was
a final judgment on the merits, (3) the issue was
"competently, fully, and fairly litigated in the
previous action, " and (4) the party against whom
collateral estoppel is asserted was a party or in privity
with a party in the prior adjudication. See Tangren
Family Trust v. Tangren, 2016 UT App 163, ¶ 16, 381
P.3d 1152 (cleaned up). There is little dispute that the
district court in the 2006 case directly ruled that the
partnership interest passed to Florence Oates individually
and was never part of the Trust. That ruling ultimately
resulted in a final order when the then-existing parties
settled the 2006 case.

¶17
The focus of the appeal of Drake's motion to dismiss is
the district court's determination regarding the final
prong of the four-part test-that Kara, the trustee plaintiff
in the 2010 case, was in privity with the beneficiary
plaintiffs, the Cattani children, in the 2006 case. The Trust
challenges that determination, arguing that "the
plaintiffs in the prior action had a very different
relationship to the subject matter of the litigation against
Drake than the Trustee has in this case."[8] We disagree with
the Trust for several reasons. First, as the district court
determined, the beneficiaries in the 2006 case and the Trust
in the 2010 case have aligned interests, which is sufficient
privity. Second, while not articulated by the district court,
we determine that it is apparent on the record here that
collateral estoppel applies because the Trust is a party in
both cases.

¶18
As to privity, our supreme court has clarified, "This
means that the plea of collateral estoppel can be asserted
only against a party in the subsequent suit who was also a
party or in privity with a party in the prior suit."
Searle Bros., 588 P.2d at 690-91. "The legal
definition of a person in privity with another, is a person
so identified in interest with another that he represents the
same legal right. Thus, privity depends mostly on the
parties' relationship to the subject matter of the
litigation." Press Publ'g, Ltd. v. Matol
Botanical Int'l, Ltd., 2001 UT 106, ¶ 20, 37
P.3d 1121 (cleaned up). For example, in Hansen v. Bank of
New York Mellon,2013 UT App 132, 303 P.3d 1025, this
court determined that a bank as a beneficiary under
Hansen's trust deed represented the same legal interests
in a state court action as did the trustee under the trust
deed in a prior federal suit. Id. ¶¶ 7-10.
Hansen had sued the bank in federal court to prevent a
foreclosure on his property on the basis that the bank did
not own a legal interest in the property. Id. ¶
3. The federal suit was dismissed with prejudice.
Id. Hansen had simultaneously filed an action in
state court asserting a claim against the trustee on the
trust deed. Id. ¶ 4. The state court dismissed
Hansen's claims regarding the foreclosure proceedings on
the basis that they had already been decided in the federal
court case. Id. Hansen argued on appeal that only
the beneficiaries had been parties in the federal suit and
that the trustee's interest was "substantively
different from that of a beneficiary." Id.
¶ 9. This court disagreed and looked at the remedy
Hansen sought-preventing foreclosure-and whether the
interests of the trustee and the beneficiaries were aligned
on this issue, ultimately determining that the beneficiaries
and the trustee were in privity. Id. ¶ 10.

¶19
That same principle applies here. In the 2006 case, before it
was fully resolved by settlement, the district court directly
ruled that the partnership interest was never part of the
Trust. The Cattani children, including Kara, vigorously
opposed that determination. The identical legal issue was in
question in the 2010 case: whether the partnership interest
was part of the Trust. There, the Trust-through its trustee,
Kara-argued that the partnership interest was never part of
the Trust. Because the interests of the Cattani children and
the Trust were aligned on this issue, and because the court
previously ruled on the issue in the 2006 case, the district
court in the 2010 case was correct in determining that
sufficient privity existed and collateral estoppel applied.

¶20
But of equal importance is the fact that, after Nolen was
removed as trustee in the 2006 case, Stagg substituted as
trustee for the Trust. Stagg, on behalf of the Trust, filed
an amended complaint and reasserted all claims for the
purpose of avoiding any argument that the claims had been
abandoned and expressly to preserve all claims for appeal.
Thus, the Trust was an actual party to the 2006 case where
the issue of whether the partnership interest was part of the
Trust was fully litigated. Therefore, it is unnecessary to
even reach the issue of privity given that the Trust was a
party in both cases. Although this argument was not raised by
the parties in their briefs, it is clearly apparent in the
record. "It is well established that an appellate court
may affirm a judgment if it is sustainable on any legal
ground or theory apparent on the record, even though such
ground or theory differs from that stated by the [district]
court to be the basis of its ruling or action."
Scott v. Scott, 2017 UT 66, ¶ 18 (cleaned up).

¶21
The Trust also asserts that collateral estoppel cannot apply
because the issues in the 2006 case and the 2010 case are not
identical. Specifically, the Trust contends that because the
2006 case did not address the issue of whether Nolen unduly
influenced Florence to persuade her to transfer the
partnership interest to Nolen, the issue presented in the
current case was never decided. We reject this assertion. The
discrete issues in the 2006 case were (1) whether the
partnership interest should have passed to the Trust as a
matter of law and (2) whether Nolen breached her fiduciary
duty by accepting ownership of the partnership interest. The
claim at issue in the present case is whether Drake is liable
for advice he purportedly gave or did not give Nolen
regarding retention of the partnership interest. While at
first blush this issue might appear distinct from the two
issues ...

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